Fifth Circuit Affirms Requirement to Pay Victim of Asbestos Exposure

In a decision released in November 2015, the United States Fifth Circuit Court of Appeals upheld the findings of an Administrative Law Judge holding Ramsay Scarlett & Co. responsible for the medical expenses attributable to a former employee’s asbestosis.

Under the Longshore Harbor Workers’ Compensation Act, certain covered employers must pay the medical expenses of their former employees who suffer disease caused by asbestos exposure. The Act requires that the employee show that he or she worked at a location of the type covered by the Act, that he or she was exposed to asbestos while working at that site, and that the exposure may have been caused or aggravated by the exposure to asbestos. The employee needs only establish a prima facie case.

To avoid liability, the employer would then have to show that the working conditions did not cause the harm or that the employee was exposed to the same harmful working conditions at a later covered employer.

In this case, the employee, Mr. Flores, worked for Ramsay Scarlett from 1969 to 1991. During that time he worked at the Port of Baton Rouge, which is a facility covered under the Act. He also worked at Sharp Station, which is not covered under the Act.

The evidence clearly showed that Mr. Flores was exposed to asbestos fibers at Sharp Station, and neither party disputed that fact. Mr. Flores also showed that he was exposed to asbestos fibers at the Port because he changed brakes and clutches of several types of equipment there.

Ramsay Scarlett wanted more proof from Mr. Flores, who testified from his own memory about being exposed to brake dust. Ramsay Scarlett wanted documentation of some kind that asbestos was at the worksite. The Court rejected that requirement, holding that the evidence given by Mr. Flores was sufficient for a reasonable person to accept that asbestos was at the work site.

Ramsay Scarlett also complained that when Mr. Flores was first diagnosed with asbestosis in 2011, he only talked about exposure at Sharp Station, where he had worn a mask for protection. Ramsay Scarlett argued that if Mr. Flores thought he was exposed at the Port, why he did not wear a mask there and why did he not report his exposure earlier.

The court rejected Ramsay Scarlett’s concerns. In order to prevail, Ramsay Scarlett would have to show substantial evidence, not mere conjecture or guesses. Ramsay Scarlett did not submit any evidence that would disprove Mr. Flores story.

The Act provides that the last employer where exposure occurred must take responsibility for paying the medical bills incurred. Ramsay Scarlett argued that Mr. Flores’ subsequent employer, Westway, should be responsible. If Ramsay Scarlett could prove that Mr. Flores was exposed to asbestos at Westway, perhaps Ramsay Scarlett could have prevailed. But, the court noted, Ramsay Scarlett presented no evidence of any exposure to asbestos at Westway and Mr. Flores denied that he had any exposure at Westway.

How Can Your Attorney Help?

Your attorney can review existing laws, including existing court decisions, and draw analogies from those cases to your case. The attorney can tell you what courts have done, and therefore might do, in your case. Of course, the results of any previous lawsuit or settlement, whether involving your lawyer, the same defendant company, the same court, or other similarities, do not guarantee that you will have the same outcome as the person in a case like this one. Each plaintiff and each claim is different.

Legislation like The Longshore and Harbor Workers’ Compensation Act can be complicated to decipher and difficult to apply. Contact an asbestos exposure attorney today for legal assistance in determining whether you may be entitled to compensation because of exposure to asbestos in the workplace.


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